Dorf on Law

by Neil H. Buchanan Apparently, at least one Democratic presidential candidate (Kamala Harris) is now willing to say out loud that Donald Trump is a racist.  This is only a big deal because Trump and his fellow travelers benefit from well-meaning people's understandable social skittishness about calling anyone a racist.  When good people insist on talking about "racially charged remarks" or "attitudes that some view as racist, but no one can know what is in another person's heart," however, that simply creates space for Trump and other racists to push further. The Washington Post 's Jennifer Rubin (taking a break, I was relieved to see, from her tiresome and misguided crusade about Democrats "handing Trump the election by moving too far left") points out that, although calling Trump a racist is both true and right, it does raise a touchy issue, which is what a Democratic contender will say when the inevitable followup question lands: ...

by Sherry F. Colb In my Verdict column for this week, I talk about ways in which the law has used definitions of words to obscure harmful activity. I focus on a new law in Missouri that defines "meat" to exclude plant-based and cultured meats and an older federal law that defined marriage to exclude same-sex couples. In this post, I want to apply the same analysis to the marital rape exemption, which was part of the law in this country from its founding through the late twentieth century. What is the marital rape exemption? It is an exclusion from the law of rape for perpetrators who rape their wives. In other words, if a perpetrator does to a victim what the law would ordinarily classify as rape, but the two parties are married to each other, then under the exemption, there is no rape. The exemption exemplifies the use of language to conceal or enable harm because of how the law worked. It did not simply say that when a husband raped a wife, he would avoid punishment. ...

by Neil H. Buchanan [Note to readers: Yesterday, Verdict published the third of a recent flurry of my columns: " The Democracy Conundrum: What If Large Numbers of Voters Are Racists? (The Trump/Brexit Tragedies) ."  I might write a followup column on that theme here on Dorf on Law soon.  Today's column below is unrelated, but hopefully still interesting.] Although we here at Dorf on Law feel free to pepper our writing with references to movies and other bits of pop culture, we typically do not write movie reviews.  Having just seen "On the Basis of Sex," the Hollywood treatment of key points in the life of the young Ruth Bader Ginsburg, I will mostly avoid the temptation simply to review the film, instead using it as a vehicle to make some larger points about law and society.  (Professor Dorf's excellent analysis in 2015 of Clint Eastwood's "Gran Torino" is a particularly good example of a discussion that is more than a film review, whic...

by Michael C. Dorf Earlier this month, Eugene Kontorovich wrote an op-ed in the Wall Street Journal  calling the ACLU hypocritical for arguing that state laws barring those who participate in the BDS boycott of Israel from doing business with the state violate the First Amendment, while at the same time arguing that those who--like the  Masterpiece Cakeshop   baker--discriminate on the basis of sexual orientation or other characteristics are not engaged in free speech. In a short post on Balkinization , Andy Koppelman agreed. Koppelman thinks that neither the Masterpiece baker nor the BDS participants should have winning free speech claims. He writes: "Conduct often has semantic significance.  But conduct that sometimes has semantic significance isn’t speech.  That was true in the case of the Colorado baker. It’s true [of the anti-BDS laws] as well."   Responding to both Kontorovich and Koppelman in an essay cross-posted on Balkinization and Take...

by Michael C. Dorf On Tuesday, the Supreme Court denied cert in a relatively unimportant case (save for the fact that the respondent was Bill Cosby--yes, that  Bill Cosby). The petitioner/plaintiff sought review of a federal appeals court ruling that in order to prevail in her defamation suit against the erstwhile Jell-O pitchman she needed to show "actual malice," because she was a "public figure" for purposes of the case, having "thrust" herself "into the vortex" of a public controversy. The quotation marks indicate terms of art in a line of cases originating with the landmark NY Times v. Sullivan . I have some sympathy for a certain line of criticism of the post- Sullivan cases. Sullivan itself was a case brought by an elected public official. Later cases--especially Gertz v. Robert Welch, Inc. --extend the doctrine's protection against too-easy defamation liability to criticisms of private citizens. Sullivan sensibly protects core po...

by Neil H. Buchanan In a pair of Verdict columns this week, I assess the state of play in the incestuous overlapping worlds inhabited by politicians and political pundits.  Specifically, I argue first that there is no reason to be surprised that Donald Trump and the Republicans are screaming " Socialism!! Aaahhhh ... " in response to anything and everything that comes from the mouth of a Democrat. It is not only that Republicans continue to have nothing popular to offer the voters , but also that they think that they can run an entire campaign by refusing to define the word socialism even as they shout it relentlessly.  Their entire strategy is to make everyone associate bad things with that word. and actually defining it would rob it of its mythical powers.  It is the perfect marriage of Trump's fear-mongering and Republicans' longstanding belief that any attempt to rein in the extremes of capitalism is a Marxist plot.  Fear the commies! I next argue in toda...

by Michael C. Dorf   (cross-posted on Take Care ) The  lawsuit by California and 15 other states  seeking to block President Trump from building part of a border wall with redirected funds repeatedly alleges that Trump's emergency declaration and other actions are "unlawful and unconstitutional." The lawsuit includes four claims for relief, alleging: (1) a violation of separation of powers; (2) a violation of the Appropriations Clause (Article I, Section 9, Clause 7), which forbids money from being "drawn from the treasury, but in Consequence of Appropriations made by Law;" (3) that the president has acted ultra vires by exceeding the scope of authority granted him by the Constitution or statutes; and (4) a violation of the National Environmental Policy Act (NEPA), with respect to California and New Mexico, insofar as the proposed border wall construction was not preceded by the preparation of an environmental impact statement (EIS). That fourth claim pretty...

by Neil H. Buchanan The scandals roiling Virginia politics have receded a bit from the headlines, but the good news is that there seems to be agreement that the sexual assault and rape charges against Lieutenant Governor Justin Fairfax should be fairly investigated.  Because nothing official has yet been put in motion, that apparent consensus might ultimately break down, but as of this moment, it at least seems possible that the initial chaos will yield to something resembling a real investigation and a deliberative process. In a column last week, I compared how the Fairfax situation is being handled to the Republicans' shameful mishandling of Brett Kavanaugh's nomination to the Supreme Court last Fall.  In the comments on that column, some readers debated whether it would be appropriate to keep the winner of an election in office after news breaks that might have changed the outcome of the election.  If news emerges that would have reversed the result, should the wi...

by Michael C. Dorf Last month, before President Trump had committed to declaring a national emergency in order to obtain funding for his border wall, I wrote a blog post in which I focused on what I called the "big picture" question posed by the statutory framework that allows the president to declare a national emergency that lasts for years. My bottom line was that Congress had failed in its obligation to oversee and participate in important matters of national policy. In my latest Verdict column , I continue focusing on the "big picture" by discussing how we got to Trump's emergency declaration and speculating on how challenges to it will fare in the courts. Here I want to focus on one of what I called the "lawyers' questions" that I bracketed in my January post. There I warned that focusing on these details in a way concedes too much to Trump and his backers, because it tends to normalize the debate and channel it into a discussion of lega...

by Neil H. Buchanan The intense media coverage of the situation in Virginia -- with the Governor and Attorney General admitting to having engaged in racist behavior, and the Lieutenant Governor having been accused by two women of sexual assault -- has looked at the situation there from seemingly every angle.  Although I acknowledge that I might have missed it, however, I have not yet seen more than passing remarks comparing the Lieutenant Governor's situation to the grotesquely mishandled confirmation process for now-Supreme Court Justice (ugh) Brett Kavanaugh. Before trying to fill at least a bit of that apparent void, I should note that I have a somewhat closer than usual six-degrees-of-Kevin-Bacon-style connection to Lt. Governor Justin Fairfax, because a colleague at my law school is an immediate relative of Fairfax.  I am passingly friendly with that colleague, but we are not friends, and I have never met the lieutenant governor. Even so, it is true that my school t...